How Long is a Piece of String? The “ambit” of The Right to Family Life under Article 8 ECHR

Written by Cloisters

Image of Ameer Ismail

Introduction

What is the “ambit” of the right to family life? Well, how long is a piece of string? The European Court of Human Rights’ (“the Court”) continued struggle to define the ambivalent concept of the “ambit” of Article 8 ECHR, and in particular the right to family life, featured centre-stage in Beeler v Switzerland (Application no. 78630/12).

The facts were straightforward: the central question was whether Switzerland’s legislative choice to limit and cease the payment of survivor’s pension for widowers when that person’s youngest child reaches adulthood, but not to apply that same limitation to widows, was discrimination on the grounds of sex. As will be familiar, Article 14 ECHR cannot be relied upon unless the facts fell within the “ambit” of another provision in the ECHR or its Protocols. The Claimant relied upon the ambit of Article 8 as Switzerland had not ratified Article 1 of Protocol No. 1 of the ECHR which covers state benefits.

The Grand Chamber held that the legislation in question was in violation of Article 14 taken in conjunction with Article 8 ECHR. The decision in Beeler is a seminal one as the Court provided a restatement on the meaning of the “ambit” of the right to family life. Although it concerned the context of social welfare benefits, it has inevitable consequences for how the “ambit” of Article 8 may be engaged more generally in future cases.

Why was a restatement needed?

The Court identified that there were conflicting approaches to the legal test for the ambit of the right to family life that had developed within the case law:

1.      First, the Court observed that in the pioneering cases of Petrovic v Austria (27 March 1998, Reports of Judgments and Decisions 1998-II) and Konstantin Markin v Russia (no. 30078/06, 22 March 2012) which concerned the exclusion of male applicants from parental leave allowance, the approach in those cases was to focus on whether the “applicants’ specific situation had necessarily affected the way in which their family life was organised” [63].

2.      The second approach was developed in cases including Di Trizio v Switzerland (no. 7186/09, 2 February 2016) and Belli and Arquier-Martinez v Switzerland (no. 65550/13, 11 December 2018) and focused on the hypothesis that “the fact of granting or refusing the benefit is liable to affect the way in which family life is organised” [64].

3.      The third approach, albeit not mutually exclusive to either of the first two, concerned the practice of the Court to have recourse to a legal presumption that by providing the benefit, the State was “displaying its support and respect for family life”: see Weller v Hungary (no. 44399/05, 31 March 2009) [65]. 

The Court’s concern was understandable. In terms of positive law, “liable to benefit” is of a lower threshold than “necessary to benefit”. Whilst the Court did not provide examples of how outcomes may vary depending on the tests used, the previous case law was confusing for practising lawyers and the judiciary alike as different tests were being relied upon.

What is the restatement in Beeler?

1.      First, the Court rejected any legal presumption to the effect that, in providing the welfare benefit in question, the State is “displaying its support and respect for family life” [69]

2.      Second, the Court rejected the hypothetical causal link whereby it is ascertained that the grant of a particular benefit is “liable to affect the way in which family life is organised” [69]. Hence, the Court recognised that the mere fact a financial benefit has an effect on the way in which the family life of a person is managed is not sufficient in and of itself to bring them within the ambit of Article 8.

3.      Third, the correct test now is as follows:

a.      “the subject matter of the alleged disadvantage must constitute one of the modalities of exercising the right to respect for family life as guaranteed by Article 8 of the Convention in the sense that the measures seek to promote family life and necessarily affect the way in which it is organised”.

4.      The Court endorsed a “range of factors” approach for determining the nature of the benefit in question [72]. The relevant factors include:

a.      the aim of the benefit as determined by the Court in light of the legislation;

b.      the criteria for awarding, calculating and terminating the benefit as set forth in the relevant statutory provisions;

c.       the effects on the way in which family life is organised as envisaged by the legislation; and

d.      the practical repercussions of the benefit given the applicant’s individual circumstances and family life throughout the period during which the benefit is paid.

On the facts, the Court had no doubt that the receipt of the pension necessarily affected the way in which his family life was organised throughout the period in question. The applicant had left his job in order to raise his two daughters full-time. From the point at which the applicant was granted the widower’s pension in 1997 until it was terminated in November 2010, he and his family organised the key aspects of their daily life, at least partially, on the basis of the existence of the pension [80].

A focus on principles, not practicalities

Unfortunately, the Court did not directly address the incoherence caused by the unsatisfactory state of the law prior to Beeler. The Court exclusively dealt with the incoherence of the principles themselves, not the outcomes of decisions affected by those principles.

For example, the Court did not address the confusion as to why parental leave “necessarily affects family life” and falls within the ambit of Article 8 but state allowances for large families does not (cf. Zeibek v Greece (no. 46368/06, 9 July 2009); Fawsie v Greece (no. 40080/07, 28 October 2010); and Saidoun v Greece (no. 40083/07, 28 October 2010)).

Likewise, the Court did not attempt to address apparent inconsistencies that have developed in domestic case law. For example, in M v Secretary of State for Work and Pensions [2006] UKHL 11, the claimant’s liability under the child support scheme as a non-resident parent was not reduced to take account of the income and outgoings of her same-sex partner, when it would have been reduced if her partner had been of the opposite sex. The majority of the House of Lords held that this difference in treatment did not come within the ambit of Article 8.

Ultimately, the Court’s unwillingness to engage with how the new test affects future cases, or would have affected already decided cases, provides us with limited guidance.

In the joint dissenting opinion of Judges Jsolbro, Kucsko-Stadlamayer, Mourou-Vikstrom, Koskelo and Roosma, it was noted that the criterion of “necessarily affecting” is potentially very wide ranging as it can easily be argued that the availability of financial support or its withdrawal will always necessarily affect the manner in which family life may be conducted [Joint Dissenting Opinion, 11]. The dissenting judges opined that:

“9. … In any event, the formulation cited above provides no real guidance on what might be considered to fall within the “ambit” and what might remain outside”.

The most useful practical guidance in Beeler may be in how the Court applied the relevant principles to the facts of Beeler itself. When asking, how does the benefit “necessarily affect” how the applicant organised his family life, the Court could have focused on how the removal of the state benefit would “necessarily affect” the organisation of family life? Instead, it asked a very different question. It asked, how had the state benefit affected the applicant’s family life? In terms of subsequent cases, this approach may suggest that it will be very straightforward for a state benefit which the state subsequently ceases to provide to fall within the ambit of Article 8.

Had the Court narrowed its focus on the period after the applicant’s youngest child reached adulthood, the applicant’s ineligibility for survivor’s pension may not necessarily have affected how his family life was organised.

Ultimately, the boundaries of the “ambit” of the right to family life remain elusive.